What Warrants an Investigation?
“Then he asked me if I wanted to ‘pursue a formal investigation,’” Maia told me about her conversation with an administrator where she worked. “I didn’t know what that meant,” she said, “so I tried to ask him about the process. “Does that mean the harasser will get notice that I reported?’ I asked him. And he accused me of being vindictive! I started crying while I was talking to him and he could tell how much stress I was under. All I wanted to do was keep my job and get some protection! I didn’t know what it meant to have a formal or informal investigation. I didn’t want an investigation at all! I just wanted to get away from the harasser. I asked if the harasser would find out because I wanted to make sure I was out of the department so he couldn’t hurt me anymore before he found out. Vindictive? I put up with this behavior for four years! I was never vindictive! I probably wasn’t vindictive enough.”
Maia is one of many employees who has explained to me the problems with the investigation model of responding to employee complaints. The question is, once you’ve heard from an employee, how do you want to respond to the report? What is the immediate action you want to have available in your toolbox if you get a report you are not prepared for? My view is that it does not have to be complicated, but you should be prepared both with support for the complainant and for protections around the problem employee. An investigation is a completely separate consideration.
If you go forward with an investigation, it is unlikely that the complaining employee can truly maintain confidentiality, and so that is something to navigate respectfully with the complaining employee. If that employee will not cooperate, your investigation will be severely limited and possibly unsuccessful, so there is an advantage to working with the complaining employee instead of against her.
One point of confusion most employees have, when an employer immediately encounters a report with an offer of investigation rather than support, is that they often do not encounter an investigation model of response until they are reporting something like harassment, discrimination, or retaliation, even though they report other problems. For example, picture this scenario:
You’re an employee and you work for a company for a couple of years. Then one day, your sandwich is stolen out of the employee refrigerator. You go to the human resources person and let them know what happened. The human resources representative says, “I’m so sorry that happened. That’s not okay. I will send out an email letting everyone know someone’s food was taken and reminding them to be careful and respectful about other people’s food or we will all start having tighter restrictions. Anything else I can do? Can I order you in a lunch?”
Work continues with no more sandwich stealing.
A year later, someone deletes one of your files in a shared folder. You are livid because you worked on that file for weeks. You go to your supervisor and let her know what happened. She immediately gets on the phone to IT to try to see what she can do to recover your file. She too sympathizes and clearly understands how frustrating it is to work that long and have the work disappear. “Is there any chance you emailed it to someone so there is a copy?” She emails the department with a reminder to never delete files from the shared folder without approval.
Shortly after that, someone new starts working for the company, and he makes you very uncomfortable. He comments on your clothing often and one time he makes a gesture like he is cupping breasts and winks at you. He asks you if you have a boyfriend. Then, you decide to work late one night, and he suddenly is at your desk, even though you thought you were alone. He doesn’t hurt you, but just the fact that he is there sends you into a panic. You wait and wait, but after months, you decide to sit down with your supervisor and HR representative and confess to them how afraid you feel. They say in unison, “Do you want us to conduct an investigation?”
You are confused and feel somewhat defensive, but you’re not sure why. You already felt ashamed and embarrassed to be talking to your bosses about being sexualized by a colleague. But now you think, “Am I wrong? Why do they need to investigate? Is it just because they think I’m not telling the truth about this?” You wonder, “They didn’t suggest investigating whether I really had a sandwich. Why investigate whether I’m telling the truth about this? What does it mean to conduct an investigation? Does it mean they think I’m a liar?”
Now, there is some strong evidence that when people who have a disadvantaged characteristic (female, non-Christian, non-white, differently abled, non-straight, transgender, etc.) report harassment or discrimination, our natural inclination is not to believe them. And when I say “our” I don’t mean people with advantaged characteristics. I mean everyone, including others with disadvantaged characteristics. One reason is that we unconsciously believe that if we acknowledge discrimination and other wrongs exist, then it opens up the possibility that they could happen to us. If our unconscious brain rejects that they exist or justifies them, it feels safer. This process usually happens so unconsciously and so quickly that we only register it as slight unease. We have the thought, “That couldn’t be true,” for a split second. But then we want to be fair, so we offer to investigate whether it’s true or not.
The complaining employee knows it’s true. She doesn’t want an investigation to find out if it’s true. Like with getting her sandwich stolen, she just wants the behavior to be corrected.
Worse than the natural, unconscious inclination to deny discrimination exists because of the mistaken idea it could hurt us to acknowledge it, some employers deliberately want to initiate investigations to cover up conduct they know is happening because they believe exposing it will cost them money. They have no thought about their company’s cultural health experience or their employees’ safety, but they see the accusation itself (rather than the discrimination) as a potential financial cost. This is just incredibly short-sighted and is the equivalent of deliberately investing in harassment and discrimination as a company policy.
Because you are reading this, I imagine that is not your perspective and that you are interested in actually creating an inclusive company culture, with all of the dynamics and communication hurdles that involves. You probably know that having a diverse, inclusive workplace will actually make it more successful and efficient in the long run. It doesn’t necessarily make it easy in the short-run, though. If you have a friend who falls more on the side of using investigations to cover up bad conduct, that is a brilliant friend to use to practice power dynamics master skills. I know it might sound outrageous, but here are legitimately good reasons that your friend wants to cover up bad conduct. In her mind, it is probably related to loyalty, forgiveness, privacy, and individualized values. Each of these has nothing actually wrong with it. But, fostering harassment and discrimination is never, in my experience, a good way to honor those values. It is simply a thinking error, and it may even be a thinking error that your friend feels she has benefited from.
The power dynamic model of response, versus the investigation model of response, does help employers get a clearer picture of what happened. This is because when employees can manage their thinking, feelings, and how they engage with power dynamics, they are better at truthfully telling stories and presenting evidence. They tell a clearer story – whether it is a complaining employee or a responding employee. I will be discussing this method in more detail in forthcoming blog posts.
When considering an investigation, it is important to proceed with care and remember that no employees who complain about problem behavior at work do so because they want an investigation – they want safety, support, and permission to take care of themselves. An investigation is sometimes necessary to provide the accused employee protections around whether discipline is fair. To prevent future investigations from going against your employee’s wishes, it is helpful to determine ahead of time what behaviors require an investigation to protect the accused employee, what behaviors are zero-tolerance events, and what behaviors require retraining and support but will not ultimately lead to discipline. Do your work first. Understand your own bias or bring someone in who is less likely to have those biases.
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This is a selection from The Inclusive Leader's Guide to Healthy Workplace Culture. For a free copy of the book, visit www.HealthyWorkplaceCulture.com. Or you can purchase online via Amazon.
